Based upon a recent letter from Acting U.S. Attorney Ken Sorenson, Hawaiʻi Attorney General Anne Lopez and House Speaker Nadine Nakamura have taken the position that state authorities can do nothing to investigate a $35,000 transaction involving an unknown but influential legislator. I strongly disagree with their interpretation of Sorenson’s letter.

I believe his letter supports, rather than negates, a state investigation, including empowering a special legislative committee to launch an inquiry and hold hearings. I say this based on my experience as a federal criminal defense attorney for over 35 years and having worked with Sorenson for many of those years.

Let me explain.

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First, there is no law, rule or regulatory requirement that a state authority cannot or even should not conduct its own investigation when there is a federal investigation underway. This is particularly true when the state investigation focuses on violations of state law or misconduct of a state employee. It is simply a choice or a courtesy.

Second, unlike how the AG and Speaker Nakamura portray Sorenson’s letter, he never said that an independent state investigation would impede the federal investigation, he only said it would potentially interfere. Sorenson, a professional prosecutor with years of experience, chose his words carefully. He could have said it would impede their investigation. He didn’t. In other words, no red-light signal was given by Sorenson as claimed by the Speaker and the AG.

This is not mere mincing of words, not when a seasoned prosecutor puts it in writing. And Sorenson is far from shy in being direct, as evidenced by his telling Civil Beat in March that if it exposed the existence of the $35,000 transaction, “it will endanger an ongoing investigation.” Now eight months after the $35,000 transaction was made public, Sorenson says there is only a potential for a state investigation to interfere. The cat, as they say, was let out of the bag months ago.

Third, Sorenson is a federal prosecutor who analyzes whether a crime has been committed and is prosecutable through the lens of federal law, not state law. For Sorenson, whether a case is “chargeable” only relates to his analysis under prevailing federal law. That is all that matters.

Sorenson has no authority to bring charges or a prosecution under Hawaiʻi state law. What he could do, and what Reps. Della Au Belatti and Kanani Souza said he did do, was to offer to share the evidence gathered by the FBI with state authorities. But AG Lopez said Sunday that no such offer has been made as the federal investigation continues. 

It may be that Sorenson is hamstrung in bringing federal bribery charges against the unknown legislator because the U.S. Supreme Court, in Snyder v. United States, effectively gutted the federal bribery statute when it held that a “gratuity” does not constitute a “bribe” under federal law, and that the government must prove by clear and convincing evidence, beyond a reasonable doubt, that a bribe, not a gratuity, was given.

This analysis dovetails with Sorenson’s clarification that the phrase “chargeable bribery offense” in his 2023 sentencing memorandum in the Ty Cullen case refers to a different unknown individual, not the legislator who accepted the $35,000. But in making this distinction, Sorenson never says that the legislator didn’t engage in a crime, possibly a bribery offense under Hawaiʻi state law.

And once again, he chose his words carefully — a “chargeable” bribery offense.

Hawaiʻi’s bribery statute is much broader in scope than its federal counterpart and does not differentiate between a bribe and a gratuity. Moreover, the Supreme Court’s ruling has no effect on Hawaiʻi’s bribery statute. Thus, it may be that whatever proof problems Sorenson is facing in federal court do not exist under Hawaiʻi state law.

But none of this matters when discussing how a legislative committee conducts its investigation under the Legislature’s powers granted to it pursuant to Hawaiʻi Revised Statute 21-3. Criminal rules and procedures simply do not apply, as a legislative committee does not labor under the evidence requirements imposed in a criminal proceeding. It is an investigatory body and conducts its business under a broad mandate.

Fourth, and this is the most interesting and telling part of the letter, Sorenson disclosed for the first time ever that the legislator accepted the $35,000 in a “paper bag.” And what, pray tell, does accepting $35,000 in a paper bag suggest?

One may differ or quibble with my analysis, but clearly the position taken by our legislative leaders and by AG Lopez should not be accepted as definitive. Sorenson’s letter, and the release of the fact that the $35,000 was given to the legislator in a paper bag, requires deeper analysis than the short shrift being given to it by our leaders in the Legislature.

Instituting a state investigation should be a no-brainer. It is simply baffling why a call for an investigation by state authorities into this unseemly transaction has met with such resistance when the Legislature expressly has the right, indeed the legal obligation under HRS 21-3, to conduct such investigations.

It appears that the leadership in the Senate, and every individual senator, have chosen to completely abdicate their responsibilities to the community as not a single member of the Senate has publicly voiced any concern over what transpired. At least some members of the House are showing a level of responsibility, and for that they deserve credit even if one may not agree with their position.

Instituting a state investigation should be a no-brainer. It is simply baffling why a call for an investigation by state authorities into this unseemly transaction has met with such resistance.

It is time for action, not obfuscation and delay. The statute of limitations is ticking, and the investigation must commence immediately. But not via a criminal investigation conducted by the AG or the creation of an independent commission suggested by Rep. Andrew Garrett. These forms of investigation take years, with a criminal investigation conducted in secrecy with no information released to the public until and unless formal charges are brought.

What is needed is an open, transparent investigation done right now, and the Legislature has that authority and power under HRS 21-3. It just doesn’t want to do it.

Unfortunately for the speaker and members of the House, the onus has fallen upon them to act. They can either rise to the occasion and be leaders who, in the words of AG Lopez, truly commit to justice and ethical governance, or they can choose to turn their backs on their responsibilities to the community. Their legacy is in their hands. 

Clearly, we need to continue to build pressure from the public to force their hands. Please sign the petition on change.org. entitled “Restore Public Trust – Investigate the Unknown Hawaii Legislator.”

CORRECTION: This story has been updated to reflect a response from the Attorney General’s office that she has not been provided evidence in the case. As a result of that conversation, the subhead also has been adjusted.